AIDS and the law: Positive historyThree decades later, the mistreatment of people with HIV continues, challenging Lambda Legal and other advocates to find new strategies for dealing with some frustratingly familiar problems.by Sally Chew, Lambda Legal2011-04-13

It was a story that seemed right out of the 1980s: When Dr. Robert Franke was evicted in 2009 from a Little Rock, Ark., assisted-living facility just for having HIV, it felt like the old daysbefore the HIV civil-rights battles, before the public health campaigns, before all the medical breakthroughs. Thirty years into the epidemic, how could the most basic information about the virus's transmission have eluded a retirement community promising "round-the-clock care"? How was it possible that people were still being kicked into the street for their HIV status?

Indeed, Lambda Legal's representation of Dr. Franke, in a lawsuit that settled out of court last year, resonated all the way back to Lambda Legal's involvement in the very first HIV lawsuit, in 1983People v. West 12 Tenants Corp.in which we represented a New York City doctor whose coop board tried to evict him because he was treating people with HIV.

The More Things Change …

The truth is that gaining ground in the battle against HIV stigma and misinformation has been shockingly slow: In a 2009 Kaiser Family Foundation survey, one out of three U.S. respondents was under the misconception that HIV could be transmitted through a drinking glass, toilet seat or swimming pool. And there is no doubt that irrational fear of HIV like this fuels the kind of HIV discrimination that continues to require Lambda Legal's intervention in court

Despite these persistent misconceptions, impact litigation against HIV discrimination nonetheless is producing better outcomes and continuing to set important precedents, especially under the Americans with Disabilities Act and various other laws protecting against discrimination in employment, housing, public accommodations and the provision of public assistance. Recent successes have made it possible for people with HIV to have access to organ transplants, for instance, and to parent their children without unwarranted court interference. And in 2009, advocates celebrated the lifting of a 22-year-old ban against people with HIV traveling or immigrating to the U.S., after years of urging Congress and four successive presidents to drop the discriminatory and medically unfounded ban.

Privacy Matters

Because revealing an HIV diagnosis to the wrong person can have serious consequences, laws in most states now recognize the importance of protecting the privacy of HIV test results. ( And, under federal law, no one's medical information is supposed to be shared without permission. ) Yet violations of confidentiality are the second most common issue ( after discrimination ) addressed by cases on Lambda Legal's HIV docket.

For instance, in Cooper v. FAA in 2007, a pilot's HIV status was shared between government agencies in violation of the federal Privacy Act, devastating the plaintiff personally. And in a separate incident in 2010, personal information belonging to 5,000 Medi-Cal recipients living with HIV was released by the California Department of Health Care Services ( DHCS ) . It's not clear yet what the individual damage may have been from the DHCS's actions, but there is no doubting the seriousness of that violationespecially on such a large scale. Lambda Legal has continued to demand an explanation.

Extra Punishment

And finally, there are the HIV-related cases that bring the threads of Lambda Legal's work together, revealing that despite the many strides we have made, public policy in many parts of the United States continues to be rampantly antigay. One such example was State of Kansas v. Limon, an ACLU case decided by the Kansas Supreme Court in 2005, in which Lambda Legal wrote a brief that argued against giving a young man a greater sentence for having sex with an underage male than he would have received if the partner had been female. The state tried to rely on a public health "rationale" tying gay people's identities to HIV. That assertion had no medical basis whatsoever, and the court agreed that the longer sentence was unlawful.

Detectable Prejudice

Among Lambda Legal's current concerns in the HIV realm are the lines sometimes drawn between those with an undetectable HIV viral load and those with a detectable one. That was the problem in Rose v. Cahee et al., which involved Melody Rose, a Wisconsin woman with a detectable viral load who was denied gall bladder surgery by a doctor who said he was worried the virus might be transmitted to him or his staff.

When this case was filed, Lambda Legal's HIV Project Director Scott Schoettes pointed out that such concerns had been addressed conclusively decades back: "Long ago, the Centers for Disease Control and Prevention established that using universal precautionswhich are required in all sorts of medical situations, including surgeriesmakes it extremely unlikely for the virus to be transmitted in this setting." And that statement is true regardless of the patient's HIV viral load. Rose's case was resolved out of court.

Another growing concern is the mistreatment of older Americans with HIV in long-term care, like the eviction of Dr. Franke in Arkansas. As more people with HIV survive into their senior years, these cases are cropping up more and morefurther fueled in many instances by the homophobia and transphobia that is too common in these already isolating settings.

Wrongful Prosecution

In recent years, Lambda Legal has also observed an uptick in the number of prosecutions and sentence enhancements based on HIV status. One particularly shocking case known as People v. Allen involved an altercation between Michigan neighbors in which prosecutors tacked on a bioterrorism charge because the fight involved biting and the accused allegedly had HIV. The case was thrown out after Lambda Legal and others presented commonly available scientific evidence that it would be almost impossible for saliva to transmit the HIV virus. Lambda Legal also objected to the absurdly HIV-phobic application of a terrorism law to a fight between neighbors.

Criminalizing behavior that would otherwise be completely legalor enhancing a person's sentence for illegal conductsimply because the person has tested positive for HIV, runs afoul of basic human rights and has no place in sound public health policy. Unfortunately, this type of discrimination is as old as Lambda Legal's fight on behalf of HIV-positive peopleand as stubborn, it seems, as the virus itself. Like our colleagues in the medical field, however, who do not intend to stop fighting HIV until it is eradicated, we at Lambda Legal are fully committed to completely eliminating the stigma and discrimination that too often prevent people with HIV from leading full and fulfilling lives.

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